Karnataka High Court
S.V. Venkataramanappa (Deceased) By ... vs Ravindra K. Naidu Alias R.K. Naidu on 11 June, 1998
Equivalent citations: ILR1999KAR120, 2000(1)KARLJ625, 1999 A I H C 1899, (1999) 1 RENTLR 212, (2000) 1 KANT LJ 625, (1999) 2 RENCR 84
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER
1. Petitioners in this revision under Section 50(1) of the Karnataka Rent Control Act, 1961 ('Act' or 'KRC Act' for short) are the legal heirs of the deceased tenant (S.V. Venkataramanappa) in regard to a non-residential premises. The respondent herein is the landlord of the premises. The monthly rent is Rs. 200/- per month. The respondent herein filed a petition against the tenant for eviction under proviso (h) to Section 21(1) of the Act.
2. During the pendency of the said petition, the tenant died. His wife and four sons (the petitioners herein) were brought on record, as his legal representatives, Thereafter, the said L.Rs of the tenant made an application under Section 151 of the CPC for dismissal of the petition contending that the eviction petition is not maintainable after the death of tenant of a non-residential premises, relying on the decision of the Supreme Court in Venkatesh Thimmaiah Gurjalkar v S.S. Hawaldar . The Trial Court rejected the application by order dated 23-3-1998, reserving liberty to the L.Rs to urge the question of maintainability along with the merits of the matter. Feeling aggrieved, the L.Ps of the deceased tenant have filed this revision petition.
3. Petitioners contend that in Gurjalkar's case, supra, the Supreme Court has held that the legal heirs of a statutory tenant in regard to a non-residential premises do not become tenants, as defined under Section 3(r) of the Act; and unless there was relationship of landlord and tenant between the petitioner and respondents, an eviction petition could not be maintained; that therefore, the eviction petition filed by the landlord against the tenant, cannot be continued by bringing on record the legal heirs of the deceased statutory tenant of a non-residential premises; and the remedy of the landlord is to bring a civil suit.
4. In Gurjalkar's case, supra, the statutory tenant of a non-residential premises died on 12-7-1994. Thereafter his son continued in possession and tendered the rent. The landlord refused to receive the rent on the ground that a L.R. of the deceased tenant was not a 'tenant' and that he was in unauthorised possession. Thereafter the landlord filed an eviction petition against the son of the deceased tenant. The Supreme Court held that tenancy of non-residential premises was not heritable and that as the landlord had contended that respondent was not his tenant and the Courts below had given a finding that respondent in the eviction petition did not answer the definition of tenant under Section 3(r) of the Act, the eviction petition could not be maintained against such a person. Consequently, the eviction petition was dismissed.
5. The facts are different in this case. The eviction petition was filed against Venkataramanappa, who was admittedly a statutory tenant of the premises. It is not in dispute that petition was maintainable when it was filed. During the pendency of the petition, the tenant died and his L.Rs were brought on record. The question for consideration is whether an eviction petition filed by the landlord against the tenant under the KRC Act in regard to a non-residential premises, is liable to be dismissed, as no longer maintainable, on the death of the tenant during the pendency of the eviction petition; and consequently, whether the remedy of the landlord is to file a suit for possession treating the L.Rs of the deceased statutory tenant as unauthorised occupants.
6. It is necessary to refer to the relevant provisions of the KRC Act, before examining the question arising for decision.
6.1 Section 3(r) defines a 'tenant' as "any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family upto the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart stand, or slaughter-house or of rents for a shop has been farmed out or leased by a local authority". Section 3(ff) defines 'family' in relation to a person means the wife or husband of such person and his or her dependant children.
6.2 Section 21 provides that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant. The proviso to sub-section (1) to Section 21 contains the grounds on which the Court may, on an application made by the tenant, make an order for recovery of possession of the premises.
6.3 Section 51 relates to proceedings by or against the legal representatives. It reads as follows.--
"(1) Any application made, appeal preferred, or proceeding taken under this Act by or against any person, may, in the event of his death be continued by or against his legal representatives.
(2) Where any application, appeal or other proceeding would have been made, preferred or taken under this Act by or against any person, such application, appeal or other proceeding may, in the event of his death, be made, preferred or taken by or against his legal representatives".
7. The term 'tenant' came up for consideration by this Court in several decisions. They held, interpreting Section 3(r), that a surviving spouse or son, daughter, father or mother of a deceased tenant, living with the tenant in regard to a residential premises as member of the tenant's family upto the death of the tenant, becomes a tenant thereafter; but a member of the family of a tenant of a non-residential premises, living with the deceased tenant and assisting the tenant in the business carried on by the deceased tenant, does not become a tenant of such non-residential premises on the death of the tenant. The protection of the Act against eviction is extended to the members of the family of a deceased tenant only in regard to a residential premises, but such protection is not extended in regard to the members of the family of a deceased tenant who carry on business with him, in regard to a non-residential premises. In other words, under the KRC Act, the tenancy in regard to a residential premises is heritable subject to fulfilment of certain conditions; but the tenancy in regard to a non-residential premises is not heritable.
7.1 In S.P. Hamidsha Chandshawala v Seshagiri Bkiku Pai and Others, Narayana Pai C.J., considered the question whether the legal representatives of a tenant of a non-residential premises were entitled to protection from eviction under the KRC Act. He held that having regard to the use of the word living" in Section 3(r) which gives clear indication of 'residence', the extended definition of the term 'tenant' in Section 3(r) will not make either a spouse or son or daughter or a parent of the tenant living or residing with the tenant, a tenant of a non-residential premises, on the death of the tenant. Reading Section 3(r) and Section 51 together, the Court held that the landlord is enabled to continue the eviction proceedings, initiated against the tenant of a non-residential premises, against the legal representatives of the tenant; but the legal representatives of the deceased tenant are deprived of the protection which their predecessor had as a statutory tenant; and therefore the landlord will be entitled to relief of eviction against such legal representatives. This Court gave the reason thus:
". . . the estate which devolves upon the legal representatives is the legal estate including the rights and liabilities, if any, got under or by virtue of a contract, but the protection which a statutory tenant has against eviction is no part of his estate but a personal benefaction or bounty conferred upon him by the special statute specifically intended to protect him.
The fact that in the case of residential premises the extended definition of a tenant extends the protection to such of the relatives specified in that definition as have been living with the deceased tenant and continued to live with him till he died, does not make the position of legal representatives of a statutory tenant of business premises either unjust or absurd. Whereas in the case of a residential premises the Act considers that some protection must be extended to others who have continued to reside with the deceased tenant, it does not consider it necessary to extend protection of the statute to any person beyond the statutory tenant in the case of business premises. That the statute is very particular about relating the protection given to one party to a contract to a restriction upon the rights of the other party to the contract is clear from the special provisions contained in the statute restricting the right of transferring the whole or any part of the tenancy right departing from the normal rule that in the absence of express prohibition rights of a tenant are capable of being transferred".
7.2 This was reiterated in Sundar Raj M.V. by L.Rs v Kamalamma. Again the matter came up for consideration by this Court in Lakshmi Hardware Stores and Another v G.V. Srikantayya. In that case the tenant of a non-residential premises died during the pendency of an eviction petition. The question that arose for consideration was whether the legal representatives of the deceased tenant would be tenants within the meaning of Section 3(r) of the Act and whether they can be said to have any interest in the premises, so as to enable them to contest the proceedings or continue a revision petition filed against the order of the Trial Court. The L.Rs of the deceased tenant strongly relied on Section 51 and contended that, if the legal representatives of the deceased tenant in occupation of a business premises did not become tenants and were not entitled to continue in possession of the premises by having the protection against eviction under the Act, there was no need to make a provision for bringing the L.Rs of such tenant on record. Meeting the said contention, the Court held as follows.--
"If the tenant occupying the business premises dies, the landlord cannot straightaway run to the premises and enter into possession of the property. In order to enable him to obtain possession of the property through Court, the provision has been made to bring the L.Rs on record".
The L.Rs of the deceased tenant next contended that, if the legal representatives had no subsisting interest in the property, so as to become entitled to the protection of the Act, they also had no locus standi to come on record or file a revision petition. The Court answered this argument as follows.--
"In a rent control proceedings, it is not only the possession that would be involved but also the question of costs might be involved. The legal representatives might contend that they are not, in law, bound to pay the costs. The goods and articles and other properties of the deceased tenant might be lying on the premises. The L.Rs will have to take them away. Therefore, to meet such situations, a provision has been made in Section 51 of the Karnataka Rent Control Act. The Section provides for continuation of the eviction proceedings against the L.Rs of the deceased tenant. It does not confer any right on the legal representatives of the deceased tenant to contest on merits unless the legal representatives set up an independent right to the tenancy in respect of non-residential premises".
Thus, the Court held that the L.Rs of a deceased tenant will have to be brought on record only for the purpose of enabling the landlord to recover possession of the premises from them.
8. The legal position as enunciated in Hamidsha to Lakshmi Hardware, supra, continued till 15-6-1984, when a Division Bench of this Court took a different view in K. Abdul Subhan v A.K. Satyanarayana Setty . In that case, during the pendency of a petition for eviction in regard to a non-residential premises, the tenant died and his legal representatives were brought on record. The Trial Court held that the legal representatives of the tenant who dies during the pendency of the proceedings, had no right to contest the proceedings. The legal representatives of the tenants filed a revision petition challenging the said decision. The Division Bench held:
(a) The L.Rs of a deceased tenant have the right to continue the proceedings at least on the basis of the averments made by the deceased whom they represent legally; and legal representatives of the deceased tenant will be entitled to make an application, or file a revision as could have been made by the deceased tenant; and the landlord cannot contend that there is no relationship of landlord and tenant between him and the L.R. of the deceased tenant.
(b) There is no provision in the KRC Act for transmission of tenancy in regard to non-residential premises. But having regard to Section 51, the L.Rs of the deceased tenant are entitled to come on record and contest the case. It was not possible to bold that the L.Rs of the deceased tenant come on record only to suffer the decree and to remove the movables, as such L.Rs had the same status as L.Rs in general law.
(c) Having regard to the decision of the Supreme Court in Damadilal v V. Parashram and Others, the L.Rs of a deceased tenant of a business premises inherit the tenancy right in regard to such business premises and the decisions in the cases of Hamidsha and Lakshmi Hardware, supra, to the contrary were no longer good law.
It should however be noticed that in Subhan's case, supra, the Division Bench left open the question whether Section 3(r) enabled only the L.Rs of a tenant in regard to a residential premises, and not the L.Rs of the tenant in regard to non-residential premises, to claim to be the tenants. The Division Bench held it was not necessary to consider that question as the real question is whether on the death of a tenant of a non-residential premises, any estate devolved on his legal representatives and that was answered in the affirmative. The decision in Subhan's case, supra, was wholly based on Damadilal, supra.
9. The legal position as enunciated in Subhan, supra, continued to hold good till the decision of Supreme Court in Gurjalkar (rendered on 15-10-1997). In Gurjalkar's case the Supreme Court, after considering the decision in Subhan's case, supra, held that the tenancy right in regard to a non-residential premises is neither heritable nor transferable, having regard to the provisions of the KRC Act, and the legal representatives of a tenant will not become the tenants, What is not heritable, when an eviction petition is not pending, will not become heritable merely because an eviction petition has been filed and was pending when the tenant died. Section 51 will not therefore make any difference and that section will have to be read as subject to Section 3(r). Having regard to the decision in Gurjalkar's case, supra, rendered with reference to the definition under Section 3(r) of the Karnataka Rent Control Act, the decision in Subhan's case, supra, that the tenancy in regard to a non-residential premises is heritable, stands overruled. As a consequence, it follows that the legal position as enunciated in the cases of Hamidsha and Lakshmi Hardware, supra, gets restored.
10. As noticed above, the decision in Gurjalkar case, supra, related to a case where the tenant died before initiation of any eviction proceedings and the landlord had refused to recognise the L.R. of the deceased tenant, as tenant. Subsequently, the landlord filed an eviction petition against the L.R. of the deceased tenant, under the KRC Act. The Supreme Court held that the tenancy in regard to non-residential premises was not heritable, and consequently restored the order of the Revisional Court (District Court) rejecting the eviction petition as not maintainable. But when the tenant of a non-residential premises dies after filing of an eviction petition, then the question of rejecting such a petition as not maintainable does not arise. Having regard to the fact that Gurjalkar's case, supra, holds that tenancy right in regard to non-residential premises is not heritable, it has to be held that the L.Rs of a deceased tenant are brought on record only to facilitate passing of an order of eviction and delivery of possession, as held in the cases of Hamidsha and Lakshmi Hardware, supra.
11. When this position was pointed out, the learned Counsel for petitioners put forth an alternative contention that the Supreme Court in Gurjalkar has not expressly overruled Abdul Subhan's case, supra and therefore Abdul Subhan should be considered to be still good law. He submitted that the Supreme Court has nowhere stated that the decision in Abdul Subhan is overruled and therefore the decision in Abdul Subhan that tenancy in respect of commercial premises is heritable is not disturbed. There is no merit in this contention, as will be evident from the following observations and finding by the Supreme Court:
". . . . It has also been found that the appellant has not inherited the tenancy, since the premises in question were non-residential premises and therefore tenancy was not heritable. This finding of the Courts below is fortified by a judgment of the Division Bench of the Karnataka High Court in K. Abdul Subhan's case, supra, wherein after an analysis of various provisions of the Act, it has been authoritatively laid down that there is no provision in the Act for transmission of tenancy in regard to non- residential premises under the Act. In that view of the matter, learned Counsel for the appellant is right to contend that since the appellant was not a tenant and had not inherited the tenancy, a petition under Section 21 of the Act for his eviction was not maintainable. If the respondent wanted to recover possession of the premises from the appellant, he had to take recourse to filing a suit for possession and not by filing an eviction petition. . . ".
The above observations clearly show that the only portion in Abdul Subhan that is approved is the observation that there is no provision in the KRC Act for transmission of tenancy in regard to non-residential premises. As the Supreme Court has clearly held that the tenancy in regard to non-residential premises is not heritable and as held in Subhan's case, supra, that such tenancy was heritable, the decision in Subhan stood clearly overruled. When the principle laid down by the Supreme Court is clear and unambiguous, it is not possible to ignore it on the ground that it has not specifically overruled the decision in Subhan. Nor it is proper for this Court to try to explain away the effect of the decision of the Supreme Court in Gurjalkar rendered specifically with reference to the provisions of Karnataka Rent Control Act, on the basis of any earlier decision of this Court or with reference to other decisions of the Supreme Court dealing with some other enactments containing different definitions of the term 'tenant'.
12. It is next contended that in Damadilal's case, supra, and Giandevi Anand v Jeevan Kumar, which is a decision of the Constitution Bench, the Supreme Court has held that statutory tenancy in respect of commercial premises is heritable and therefore the decision in Gurjalkar holding that tenancy in respect of commercial premises is not heritable, should not be followed, being a decision of only two Judges. When the Supreme Court having considered the provisions of the Karnataka Act has held that tenancy in regard to commercial premises is not heritable, it will be improper for this Court to examine and hold that such a decision is erroneous by referring to other decisions, though of larger Benches, dealing with provisions which are not identical or similar. That it is possible to take a different view with reference to other decisions of the Supreme Court, dealing with other enactments, is not a ground to ignore the direct binding decision of the Supreme Court. In Ballabhdas Mathuradas Lakhani v Municipal Committee, Malkapur, the Supreme Court held that High Court cannot ignore a decision of the Supreme Court, because it thought that relevant provisions were not brought to the notice of the Supreme Court. Hence Gurjalkar cannot be ignored on the ground that it did not consider the cases of Damadilal and Giandevi, supra, when the said decisions do not deal with the Karnataka Act.
13. The above discussion shows that so long as Gurjalkar holds the field, the position will be as follows in regard to statutory tenancies relating to non-residential premises, covered by Part V of the Karnataka Rent Control Act, 1961.--
(a) If the tenant dies and the landlord does not accept or recognise the L.R. of the deceased tenant, as tenant, the remedy of the landlord is to file a civil suit, to obtain possession.
(b) If the tenant dies and the landlord recognises the L.R. of the deceased tenant, as tenant and accepts rent from such L.R., then the L.R. becomes the tenant and thereafter the remedy of the landlord is by filing an eviction petition under KRC Act, to obtain possession.
(c) If the tenant dies during the pendency of the eviction petition or any revision petition arising therefrom, the L.Rs are to be brought on record, only for the purpose of passing an order of eviction, to enable the landlord to recover possession and the L.Rs will not be entitled to contest the petition on merits.
14. In view of the above, this petition is dismissed.